Tina Carter Thomas Versus Thomas Lowell Thomas Jr.

TINA CARTER THOMAS NO. 22-CA-141

VERSUS FIFTH CIRCUIT

THOMAS LOWELL THOMAS JR. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 740-149, DIVISION "P"
HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

December 28, 2022

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, Robert A. Chaisson, Stephen J. Windhorst, and Hans J.
Liljeberg

AFFIRMED IN PART; REVERSED IN PART
FHW
SMC
RAC
HJL

DISSENTS IN PART WITH REASONS
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
TINA CARTER THOMAS
Richard J. Richthofen, Jr.

COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT,
THOMAS LOWELL THOMAS JR.
Jennifer C. Carter
Dixon C. Brown

WICKER, J.

In this appeal, arising from a judgment partitioning community property, each

party, individually, seeks appellate review. Following the parties’ divorce, the

former couple sought to partition their assets and liabilities. The trial court denied

their individual requests for reimbursement associated with the parties’ former

marital home including: Mr. Thomas’ request for reimbursement of the separate

mortgage obligation paid by the community regime; and Ms. Thomas’ request for

rental reimbursement for Mr. Thomas’ exclusive use of the former marital home

after the parties separated. Each party complains of the trial court’s December 16,

2021 judgment denying their individual requests for reimbursement. We find the

trial court did not err denying Mr. Thomas reimbursement of the separate mortgage

obligation paid by the community regime. However, we find the trial court erred in

denying Ms. Thomas’ claim for rental reimbursement as agreed upon by the parties

in the July 13, 2020 joint sworn detailed descriptive list. Accordingly, the trial

court’s December 16, 2021 judgment is affirmed in part and reversed in part.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

On October 4, 2002, Thomas L. Thomas, Jr. (“Mr. Thomas”) and Tina Carter

Thomas (“Ms. Thomas”) were married, and together they have one minor child,

M.T. Shortly before the parties married in October 2002, Ms. Thomas purchased

property located at 704 Jade Avenue in Metairie, Louisiana. To secure the financing

to purchase the home, Ms. Thomas executed a mortgage in her name only. On the

same day and immediately after purchasing the property, Ms. Thomas donated a

one-half interest in the property at Jade Avenue to Mr. Thomas. The parties lived

together in the Jade Avenue home with their child until the parties separated in June

2014.

Ms. Thomas filed a petition for divorce on July 9, 2014, which among other

things requested a partition of the community regime. On August 7, 2014, the parties

22-CA-141 1

entered into a consent judgment wherein they acknowledged the use of the family

residence was an issue in dispute, but the parties stipulated to Mr. Thomas’ interim

use of the residence and reserved the issue of rental reimbursement until the partition

of the property.1 The parties were subsequently divorced on August 21, 2015.

In 2016, in the initial sworn descriptive lists separately filed by each party,

both acknowledged a rental reimbursement claim owed to Ms. Thomas for Mr.

Thomas’ exclusive use of the home, although Mr. Thomas stated that the rental

reimbursement was described as “still accruing” and claimed that he was unsure of

the fair market rental value for the house. In contemplation of partition of the

community, Ms. Thomas filed a motion to inspect and appraise the Jade Avenue

property. In March 2019, the parties agreed to a court-appointed appraiser to

determine the fair market value as well as the fair market rental value from July 2014

through the (then) present. Wayne Sandoz & Associates, Inc. provided an appraisal

of the home on May 3, 2019. Ms. Thomas filed a motion to set trial and a

supplemental and amending sworn detailed descriptive list in September 2019,

wherein she sought rental reimbursement for Mr. Thomas’ exclusive use of the Jade

Avenue home from July 2014 to July 2019, in the amount of $30,000.00, which

represented one-half of the rental value for Mr. Thomas’ use of the home for that

five-year period.2 In October 2019, Mr. Thomas also filed an amended and

supplemental sworn detailed descriptive list, in which he requested reimbursement

for the separate mortgage obligation for the Jade Avenue property, paid for by the

community from October 4, 2002, through November 30, 2012. He alleged that he

is entitled to reimbursement in the amount of $46,252.06.

Thereafter, on July 13, 2020, the parties filed a joint sworn detailed descriptive

list in advance of the hearing officer conference on the issue of partition of

1
Mr. Thomas continued to reside at the Jade Avenue home without interruption, at least until the November
2021 hearing.
2
The $30,000.00 sought for rental reimbursement represents one-half of the rental value of $60,000.

22-CA-141 2

community property. The July 2020 joint sworn detailed descriptive list included

Mr. Thomas’ claim for reimbursement of the separate mortgage obligation related

to the Jade Avenue property as well as Ms. Thomas’ claim for rental reimbursement

for Mr. Thomas’ exclusive use of the home. The July 2020 joint descriptive list

reflects that Ms. Thomas traversed the inclusion of Mr. Thomas’ reimbursement

claim for the payments made on the separate mortgage obligation. However, the

parties concurred in the inclusion of Ms. Thomas’ rental reimbursement claim in the

amount of $30,000.00. After multiple continuances, a hearing officer conference

was held on April 20, 2021, wherein the hearing officer recommended that the trial

court deny Mr. Thomas reimbursement of the separate mortgage obligation and grant

Ms. Thomas rental reimbursement for Mr. Thomas’ exclusive use of the Jade

Avenue property from August 7, 2014, to April 30, 2021, based on a monthly rental

rate of $1,050.00, totaling $42,423.50.

The parties then filed their individual objections to the hearing officer’s

recommendations and subsequent memoranda in support.3 Relevant to this appeal,

Mr. Thomas objected to the hearing officer’s recommendation to deny

reimbursement of the separate mortgage obligation associated with the family home.

He additionally objected to the hearing officer’s recommendation to grant Ms.

Thomas rental reimbursement, claiming Ms. Thomas offered no evidence to

establish what the rental value was for any year other than 2019. He also argued the

rental reimbursement should be denied altogether or, at the very least, reduced to an

amount equivalent to his mortgage reimbursement claim, allowing the claims to

offset each other.

A hearing on the objections was held in November 2021, after which the trial

court took the matter under advisement. On December 16, 2021, the trial court

3
Ms. Thomas’ objections to the hearing officer’s recommendations are not pertinent to the matter before
us on appellate review.

22-CA-141 3

rendered judgment. The trial court overruled Mr. Thomas’ objection as to his

mortgage reimbursement claim, finding that under the totality of the circumstances

Mr. Thomas was not entitled to reimbursement. The trial court also sustained Mr.

Thomas’ objection on the issue of rental reimbursement and denied Ms. Thomas

reimbursement for “failure of exacting proof.” It is from the trial court’s December

16, 2021 judgment that Mr. Thomas and Ms. Thomas, individually, seek appellate

review.

STANDARD OF REVIEW

On appellate review, Mr. Thomas raises one assignment of error. He avers

that the trial court erred when it found he was not entitled to mortgage

reimbursement for payments made by the community prior to the parties refinancing

the property in 2012 and extinguishing the original mortgage obligation.

Additionally, Ms. Thomas seeks appellate review of the trial court’s denial of her

rental reimbursement claim.

In Wells v. Wells, 12-315 (La. App. 5 Cir. 1/16/13), 109 So.3d 45, 47, this

Court explained that “the trial court has broad discretion in adjudicating issues raised

by divorce and partition of the community regime.” (citing Dublan v. Dublan, 06–

296, p. 6 (La. App. 5 Cir. 11/28/06), 947 So.2d 759, 762). “The trial judge is

afforded a great deal of latitude in arriving at an equitable distribution of the assets

between the spouses. Id. This Court will not disturb a trial court's finding of fact in

the absence of manifest error. Id.”

DISCUSSION

Mortgage Reimbursement

At the time of the marriage, the mortgage associated with the Jade Avenue

home was held solely in Ms. Thomas’ name. The community paid down the

mortgage obligation from 2002 until November 2012, at which time the parties

refinanced the home, extinguishing the original mortgage obligation and both parties

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becoming jointly liable for the new mortgage. The parties do not dispute that the

new mortgage obligation, incurred on November 30, 2012, and jointly titled, is a

community obligation. At issue in this case is the original mortgage that existed

prior to the marriage until November 2012. Mr. Thomas claims that the original

mortgage is a separate obligation that Ms. Thomas, alone, owed. In that the

community paid Ms. Thomas’ separate obligation, from October 4, 2002, until

November 30, 2012, Mr. Thomas contends that he is entitled to a one-half

reimbursement of the expenses paid by the community.

Mr. Thomas avers that the facts of this case are similar to Jackson v. Morton,

17-194 (La. App. 5 Cir. 11/15/17), 232 So.3d 685. The plaintiff and defendant were

an unmarried couple for many years. The couple lived together with their two

children, born from the relationship. The plaintiff purchased a property that was

mortgaged in his name. On the same day, the plaintiff donated to the defendant one-

half interest in the property. The plaintiff filed a petition for partition after the

relationship ended. He alleged that the defendant did not contribute to the mortgage

payments and averred that he was entitled to reimbursement for the defendant’s

share of the mortgage payments under La. C.C. art. 806.4 The trial court denied the

plaintiff’s mortgage reimbursement claim, and the plaintiff appealed. On appellate

review, this Court affirmed the trial court’s ruling and reasoned that because the

parties “were co-owners of the property and a mortgage is not an expense subject to

reimbursement under La. C.C. art. 806,” the plaintiff could not prove that he was

entitled to mortgage reimbursement from the defendant. Id., 232 So.3d at 688.

This case is distinguishable from Jackson, however, in that Mr. and Ms.

Thomas are not simply co-owners of the property. Unlike the couple in Jackson,

4
La. C.C. art. 806 states:
A co-owner who on account of the thing held in indivision has incurred necessary expenses, expenses for
ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to
reimbursement from the other co-owners in proportion to their shares.
If the co-owner who incurred the expenses had the enjoyment of the thing held in indivision, his
reimbursement shall be reduced in proportion to the value of the enjoyment.

22-CA-141 5

Mr. and Ms. Thomas were married; therefore, La. C.C. art. 806 is inapplicable. The

code articles relative to the matrimonial regime and separation of the property

regime govern here.

“Under the regime of separation of property each spouse acting alone uses,

enjoys, and disposes of his property without the consent or concurrence of the other

spouse.” La. C.C. art. 2371. Pursuant to La. C.C. art. 2372, “[a] spouse is solidarily

liable with the other spouse who incurs an obligation for necessaries for himself or

the family.” “Each spouse contributes to the expenses of the marriage as provided

in the matrimonial agreement. In the absence of such a provision, each spouse

contributes in proportion to his means.” La. C.C. art. 2373.

Birch v. Birch, 45,702 (La. App. 2 Cir. 11/3/10), 55 So.3d 796, presents a set

of facts more analogous to this case than Jackson. The couple, in Birch, was married

in 1991, and the day before the parties were married, they executed a matrimonial

agreement, rejecting the community property regime. During the marriage, the wife

used her separate funds to purchase three properties including an office, a store, and

a residential home. The wife purchased the residential property in 1995. The

property was subsequently renovated and became the couple’s home.

In December 2002, the parties separated, and the final judgment of divorce

was rendered in February 2004. The husband sought reimbursement for separate

funds “given or taken” by his former wife. The trial court determined that the

matrimonial agreement constituted a waiver of all reimbursement claims. The

Second Circuit reversed the trial court’s judgment, finding the trial court committed

legal error in concluding that the matrimonial agreement waived all reimbursement

claims. The appellate court further found that the matter required remand to

determine the amount of reimbursement owed. The appellate court concluded that

“in the face of conflicting testimony” and questionable documentation, the trial court

22-CA-141 6

was in a superior position to make necessary credibility determinations and complete

the fact-finding task it had begun.

Most pertinent to our discussion is the appellate court’s finding that the

couple’s home, which the wife bought with her separate funds, was subject to La.

C.C. art. 2371 et seq. That is, “each spouse must contribute to the expenses of the

marriage; in the absence of a specific provision, ‘each spouse contributes in

proportion to his means.’” Birch v. Birch, 45,702 (La. App. 2 Cir. 11/3/10), 55 So.3d

796, 803, writ denied, 2010-2670 (La. 1/28/11), 56 So.3d 959 (quoting Bergeon v.

Bergeon, 02-158 (La. App. 5 Cir. 5/29/02), 817 So.2d 1280, 1283).

In Bergeon, this Court explained:
Under the codal articles applicable to separate property regimes, each
spouse uses his property without the consent of the other spouse, and a
spouse is solidarily liable with the other spouse who incurs an
obligation for necessaries for himself or the family. La. C.C. arts. 2371
and 2372. Further, in the absence of an agreement otherwise, each
spouse contributes to the expenses of the marriage in proportion to his
means. La. C.C. art. 2373.

Id., 02-158, p. 5-6, 817 So.2d at 1283.
In a separate property regime, “a spouse is solidarily liable for payment of

‘expenses of the marriage.’ However, to the extent one spouse incurs expenses

which are not for the common good of the marriage, the other spouse may claim

reimbursement for the payment of these obligations.” Id., 817 So.2d at 1284

(emphasis added).

The Second Circuit in Birch determined that despite the wife using her

separate funds to acquire the property, it became the couple’s home. Thus, the

mortgage associated with the home was for the common good of the marriage and

an expense for which the husband was not entitled to reimbursement pursuant to La.

C.C. art. 2372.

“The trial judge is afforded a great deal of latitude in arriving at an equitable

distribution of the assets between the spouses. This Court will not disturb a trial

22-CA-141 7

court's finding of fact in the absence of manifest error.” Wells v. Wells, 12-315 (La.

App. 5 Cir. 1/16/13), 109 So.3d 45, 47 (internal citation omitted).

In this case, Ms. Thomas incurred the mortgage of the Jade Avenue home

prior to the parties being married. Generally, an obligation incurred before entering

a community property regime is the separate debt of the obligee. Yet, immediately

after purchasing the home, Ms. Thomas donated one-half interest in the home to Mr.

Thomas. Within days, the parties were married. Ms. Thomas maintains, and the

evidence reflects, that the Jade Avenue property was purchased in contemplation of

being the couple’s home—and it was from October 2002 until November 2014. As

in Birch, the expense incurred was clearly for the common good of the family.

Consequently, the mortgage from 2002 until 2012 (when the parties refinanced the

home) is considered an expense of the marriage as contemplated by La. C.C. art.

2373. Mr. Thomas is not entitled to reimbursement of this expense of the marriage

which the law requires him to pay.

Therefore, we find no error in the trial court’s judgment denying Mr. Thomas’

request for reimbursement of mortgage payments made prior to the couple

refinancing the home in 2012.

Rental Reimbursement

Next, Ms. Thomas appeals the trial court’s denial of her claim for rental

reimbursement. Upon termination of the community, spouses may assert claims for

reimbursement from the patrimony of the spouse who owes reimbursement. La.

C.C. arts. 2358 and 2359. “If…former community property has been used thereafter

for the…benefit of the separate property of a spouse, the other spouse is entitled to

reimbursement for one-half of the amount or value that the community property had

at the time it was used.” La. C.C. art. 2366. Additionally, “[a]fter a contradictory

hearing, the court may award rent to be paid by a spouse exercising exclusive use

and occupancy of a residence….” La. R.S. 9:374(D). The burden of proof is on the

22-CA-141 8

party claiming reimbursement. McLaughlin v. McLaughlin, 17-645 (La. App. 5 Cir.

5/16/18), 247 So.3d 1105, 1115. It is incumbent upon the parties to present evidence

at the partition trial regarding the value of the assets and liabilities claimed. Ponson

v. Ponson, 17-469 (La. App. 5 Cir. 3/14/18), 241 So.3d 1213, 1220. The court is not

required to accept at face value a party’s valuation of assets, debts, or claims against

the community. Ellington v. Ellington, 36,943 (La. App. 2 Cir. 3/18/03), 842 So.2d

1160, 1166, writ denied, 03-1092 (La. 6/27/03), 847 So.2d 1269. Whether a

reimbursement claim is allowed is a finding of fact which this Court reviews for

manifest error. Vinet v. Vinet, 20-387 (La. App. 5 Cir. 4/14/21), 347 So.3d 972, 976.

However, “[w]here one or more legal errors interdict the fact-finding process, the

manifest error standard is no longer applicable, and, if the record is otherwise

complete, the appellate court should make its own independent de novo review of

the record and determine a preponderance of the evidence.” Clarke v. Clarke, 16-

669 (La. App. 5 Cir. 4/12/17), 219 So.3d 1228, 1231 (citing Evans v. Lungrin, 97-

541, 97-577 (La. 2/6/98), 708 So.2d 731, 735).

On appellate review, Ms. Thomas avers that the trial court erred when it failed

to consider the parties’ July 13, 2020 joint sworn detailed descriptive list, in which

the parties both concurred to Ms. Thomas’ entitlement to a rental reimbursement of

$30,000.00 for Mr. Thomas’ exclusive use of the family home for the period of July

2014 to July 2019. Ms. Thomas asserts that the declaration regarding rental

reimbursement contained in the joint sworn detailed descriptive list, which Mr.

Thomas’ attorney signed and submitted on behalf of both parties, constitutes a

judicial admission, the effect of which is a waiver of evidence relative to the subject

of the admission. Therefore, Ms. Thomas maintains that she was not required to

submit evidence to support her claim for rental reimbursement because Mr. Thomas

had already judicially confessed that she was entitled to rental reimbursement.

La. C.C. art. 1853 states:

22-CA-141 9

A judicial confession is a declaration made by a party in a judicial
proceeding. That confession constitutes full proof against the party who
made it.

A judicial confession is indivisible and it may be revoked only on the
ground of error of fact.

In Goines v. Goines, 08-42 (La. App. 5 Cir. 6/19/08), 989 So.2d 794, 797, this

Court explained:

A declaration that expressly acknowledges an adverse fact and is made
by a party in a judicial proceeding is a judicial confession that
constitutes full proof against the party who made it. Tucker v. St.
Tammany Parish School Bd., 03-2401 (La. App. 1 Cir. 9/17/04), 888
So.2d 235, 237, citing, Perry v. Perry & Sons Vault & Grave Serv., 03-
1519 (La. App. 3 Cir. 5/12/04), 872 So.2d 611, 614. A judicial
confession is indivisible and may be revoked only on the ground of [an]
error [of] fact. Id. An admission in a pleading falls within the scope of
a judicial confession and is full proof against the party making it.
Monfore v. Self, 99-459 (La. App. 3 Cir. 12/8/99), 755 So.2d 907, 909,
citing, Smith v. Board of Trustees, 398 So.2d 1045 (La.1981). A
judicial confession must be explicit and not merely implied. Monfore,
supra, citing, Hoffman v. Hoffman, 430 So.2d 149 (La. App. 2 Cir.
1983).

(emphasis added).

“A judicial admission or confession is a party’s express acknowledgment of

the correctness of the fact or the act charged against him by his adversary.” Allison

v. CITGO Petroleum Corp., 18-302 (La. App. 3 Cir. 12/19/18), 262 So.3d 936, 946

(citation omitted). The confession is “designed to dispense with evidence and has

the effect of withdrawing the subject matter of the confession from issue.” Id.

(citation omitted); see also, La. C.C. art. 1853, Comment (b) (“a declaration made

by a party's attorney or mandatary has the same effect as one made by the party

himself”). A “judicial confession is binding on the court and must be applied as the

law of the case in which it is made.” Picard v. Vermilion Par. Sch. Bd., 00-1222

(La. App. 3 Cir. 4/4/01), 783 So.2d 590, 598 (citing 2304 Manhattan Blvd.

Partnership v. La. Power & Light Co., 94-192 (La. App. 5 Cir. 9/14/94); 643 So.2d

1282).

22-CA-141 10

In Goines, the wife appealed the trial court’s finding that the marital home

that was purchased prior to the marriage was the separate property of the husband.

The husband originally filed a community property list of assets and expenses, in

2003, which listed the former marital home as community property. Similarly, he

filed multiple detailed descriptive lists in 2003 and 2004, that listed the home as

community property; and despite filing a rule to show cause why the former marital

home should not be declared his sole property in 2006, the husband failed to argue

in his motion that the home was his separate property and not part of the community

regime. It was not until 2007 that the husband asserted for the first time that the

home was his separate property. At the hearing, the wife argued that the affidavit

executed for the purpose of refinancing the home stated that the home was

community property. The trial court determined that the home was the husband’s

separate property, finding the affidavit did not expressly state that the husband

intended to transfer his separate property to the community regime.

This Court reversed the trial court finding that the husband “had judicially

admitted the house was community property and the affidavit successfully

transferred the property to the community.” Goines, 989 So.2d at 796. We

explained that in order for a declaration to be deemed a judicial confession, it “must

be explicit and not merely implied.” Id. at 797. This Court further held that the

“detailed descriptive lists filed by both parties constitute pleadings and, therefore,

any admission or statement made in the documents, falls within the scope of a

judicial confession.” Id. In that the husband’s declarations contained in his detailed

descriptive lists and motions explicitly stated that the home was community

property, we concluded that the statements were judicial confessions that the home

was community property. Moreover, we found that the husband failed to prove that

any error of fact existed to revoke his confession.

22-CA-141 11

Similarly, in this case, Mr. Thomas filed a sworn detailed descriptive list on

December 19, 2016, which stated Ms. Thomas was entitled to a rental

reimbursement claim for his exclusive use of the former marital home. Mr. Thomas

indicated that Ms. Thomas’ claim to which she was entitled was “Still Accruing”

and that he was “unsure of the fair rental value” for the home. In March 2019, the

parties entered a consent judgment whereby they agreed to a court-appointed

appraiser to conduct an inspection of the Jade Avenue home to determine the fair

market value of the home and the fair market rental value for the period of July 2014

through the (then) present. In September 2019, Ms. Thomas filed her amended and

supplemental detailed descriptive list that included a rental reimbursement claim due

to her in the amount of $30,000.00 for Mr. Thomas’ exclusive use of the former

marital home from July 2014 to July 2019. Mr. Thomas filed an amending and

supplemental detailed descriptive list in October 2019; however, Mr. Thomas did

not amend or withdraw his acknowledgment of Ms. Thomas’ rental reimbursement

claim. Moreover, in July 2020, Mr. Thomas filed, on behalf of both parties, the joint

sworn detailed descriptive list, in which they both concurred as to the value of the

rental reimbursement claim, $30,000.00, for the period of July 2014 to July 2019.

Mr. Thomas did not assert that rental reimbursement was not owed until the hearing

officer had also denied his claim for reimbursement of the separate mortgage

obligation and he filed his objections with the trial court in April 2021.5

As this Court found in Goines, each party submitted individual detailed

descriptive lists that indicated what reimbursement claims were owed. Both

indicated that rental reimbursement was owed for Mr. Thomas’ exclusive use of the

former marital home. Likewise, the parties thereafter filed a joint sworn detailed

descriptive list—that Mr. Thomas, rather than Ms. Thomas, filed on behalf of both

5
In particular, Mr. Thomas argued that if any rental reimbursement was owed it should be reduced to an
amount equivalent to his mortgage reimbursement claim in order for the claims to offset each other.

22-CA-141 12

parties—stating the value of the rental reimbursement Ms. Thomas was owed totaled

$30,000.00 for the period from July 2014 to July 2019.

“Detailed descriptive lists in a community property partition constitute

pleadings and, therefore, any admission or statement made in the documents falls

within the scope of a judicial confession.” Cola v. Cola, 19-0530 (La. App. 1 Cir.

12/27/19), 294 So.3d 6, 11, writ denied, 20-00344 (La. 6/3/20), 296 So.3d 1068

(citing Goines, 989 So.2d at 797). The detailed descriptive lists, in particular the

July 2020 joint sworn detailed descriptive list, expressly acknowledge Ms. Thomas’

entitlement to rental reimbursement and the valuing of her reimbursement in the

amount of $30,000.00. Therefore, Mr. Thomas’ declaration made in the detailed

descriptive lists expressly acknowledging Ms. Thomas’ rental reimbursement claim

is a judicial confession that constitutes full proof against Mr. Thomas. Moreover,

Mr. Thomas presented no evidence to prove “any error of fact on which to revoke

the judicial confession.” Goines, 989 So.2d at 798.

Considering Mr. Thomas’ statements made in the detailed descriptive lists

constitute a judicial confession, we find the confession was binding on the trial court

and it was required to apply it as the law of the case.6 Picard v. Vermilion Par. Sch.

Bd., 783 So.2d at 598. Therefore, we find the trial court erred as a matter of law in

denying, for lack of evidence, Ms. Thomas’ rental reimbursement claim for Mr.

Thomas’ exclusive use of the Jade Avenue home.

Based on our de novo review, we find the record, and specifically the joint

sworn detailed descriptive list, contains sufficient evidence to award Ms. Thomas

$30,000.00 for her rental reimbursement claim. Moreover, although the hearing

officer recommended that Ms. Thomas was entitled to rental reimbursement over the

6
Furthermore, even if this Court were to treat the statements made in the detailed descriptive lists as
stipulations, we find stipulations have the effect of judicial confessions, in that stipulations “become law of
the case and are binding on the trial court when not in derogation of the law.” Vinet, 347 So.3d at 979.

22-CA-141 13

$30,000.00 the parties stipulated to7, Ms. Thomas failed to present any evidence

relative to the rental value at the hearing on the parties’ objections. In the absence

of additional evidence, we decline to award any additional amounts. Accordingly,

the trial court’s denial of Ms. Thomas’ rental reimbursement claim is reversed, and

Ms. Thomas is awarded $30,000.00 for rental reimbursement.

CONCLUSION

For the reasons set forth above, we find the trial court did not err in denying

Mr. Thomas’ mortgage reimbursement claim. However, we find the trial court erred

in denying Ms. Thomas’ rental reimbursement claim and further find Ms. Thomas

is entitled to $30,000.00 for rental reimbursement. Therefore, the trial court’s

judgment is affirmed in part and reversed in part.

AFFIRMED IN PART; REVERSED IN PART

7
After the parties submitted the joint detailed descriptive list, the hearing officer, relying on the court-
ordered appraisal, determined that Ms. Thomas was actually owed more than the $30,000.00 that the parties
stipulated to. The hearing officer recommended that Ms. Thomas was entitled to a monthly reimbursement
rate of $1,050.00. Thus, for the period Mr. Thomas enjoyed the exclusive use of the family home, the
hearing officer recommended that Ms. Thomas was entitled to rental reimbursement in the amount of
$42,423.50.

22-CA-141 14

TINA CARTER THOMAS NO. 22-CA-141

VERSUS FIFTH CIRCUIT

THOMAS LOWELL THOMAS JR. COURT OF APPEAL

STATE OF LOUISIANA

WINDHORST, J., DISSENTS IN PART WITH REASONS

I respectfully disagree with the majority in part, and would affirm the trial

court’s denial of Tina Carter Toups’ (formerly Thomas) request for rental

reimbursement. Under the specific facts of this case, I cannot conclude that the trial

court was manifestly erroneous or clearly wrong, and that there was no reasonable

basis in evidence for the trial court’s denial of Ms. Toups’ rental reimbursement

claim.

The trial court has broad discretion in adjudicating issues raised by divorce

and partition of the community regime. Vedros v. Vedros, 16-735 (La. App. 5 Cir.

10/25/17), 229 So.3d 677, 680, writ denied, 17-2119 (La. 02/23/18), 237 So.3d 1185,

and writ denied, 18-004 (La. 02/23/18), 237 So.3d 520. The trial court is afforded a

great deal of latitude in arriving at an equitable distribution of the assets between the

spouses. Id. Whether a reimbursement claim is allowed is a finding of fact, which

is reviewable under the manifest error standard. Id.

On April 17, 2019, after a hearing officer conference, the parties entered into

a consent judgment agreeing to the appointment of Wayne Sandoz to appraise the

market value of the immovable property located at 704 Jade Avenue, Metairie,

Louisiana, and to determine the fair market rental value for the property for the

22-CA-141 1

period from July 9, 2014 through the present. On July 13, 2020, a joint sworn

detailed descriptive list was signed by counsel for both parties and was filed in the

record. As to the rental reimbursement claim of the wife, the parties both agreed to

$30,000 for rental reimbursement.

The parties appeared before the hearing officer on partition issues on several

occasions, and the matter was submitted to the hearing officer on March 31, 2021.

On April 21, 2021, the hearing officer rendered her recommendations. The hearing

officer recommendation provides in pertinent part:

Several VHOC’s took place on partition issues, during which
documents provided by the parties were reviewed and discussed, and
certain numbers were updated with the passage of time. At the VHOC
scheduled to take place on 3-31-21, the attorneys appeared without their
clients and reported that they believed additional HOC discussions
would be fruitless due to their clients’ divergent positions as to certain
partition claims. Accordingly, the recommendations made by the
Hearing Officer are based on the documents provided (or not
provided) by each party. [Emphasis added.]

The hearing officer attached and made a part of the record her findings and

recommendations as set forth in “Attachment A,” the joint detailed descriptive list.

Attachment A listed the agreed amount of rental reimbursement to Ms. Toups as

$30,000. Regarding Ms. Toups’ rental reimbursement claim, the hearing officer’s

hand written modifications to this claim stated “8/7/14 through 4-30-21 at

$1,050/month” and recommended awarding Ms. Toups “$42,423.50 (already

divided by 2).”

Mr. Thomas timely filed an objection to the hearing officer’s recommendation

of rental reimbursement to Ms. Toups. At the objection hearing before the trial court,

Ms. Toups did not submit Mr. Sandoz’s appraisal report into evidence nor did she

refer to the joint sworn detailed descriptive list in support of her rental

reimbursement claim. The trial court took the matter under advisement and allowed

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the parties to file post-trial memoranda. On September 27, 2021, the trial court

rendered a judgment sustaining Mr. Thomas’s objection and denying Ms. Toups’

rental reimbursement claim for “failure of exacting proof.” The majority’s opinion

finds that the trial court erred by not considering as evidence the parties’ judicial

confession in the joint sworn detailed descriptive list to determine Ms. Toups’

entitlement to rental reimbursement. I respectfully disagree.

La. C.C. art. 1853 provides that a judicial confession is a declaration made by

a party in a judicial proceeding that constitutes full proof against the party who made

it. A judicial confession is indivisible and it may be revoked only on the ground of

error of fact. Id. A judicial confession has the effect of waiving evidence as to the

subject of the admission. C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.

12/03/03), 861 So.2d 156, 159.

A judicial confession must be an express acknowledgment of an adverse fact.

Jones v. Gillen, 564 So.2d 1274, 1279 (La. App. 5 Cir. 1990), writ denied, 568 So.2d

1080 (La. 1990) and writ denied, 568 So.2d 1081 (La. 1990). Additionally, the

adverse party must have believed the fact was no longer at issue or must have relied

on it, to his detriment. Id.; Jefferson Parish Clerk of Court Health Ins. Trust Fund

Through Mouledoux v. Fidelity and Deposit Co., 95-951, 95-952, 95-953, 95-954,

95-955, 95-956, 95-957 (La. App. 5 Cir. 04/30/96), 673 So.2d 1238, 1244, writ

denied, 96-1719 (La. 10/04/96), 679 So.2d 1390. Otherwise, the party making the

admission can withdraw the statement. Jones, 564 So.2d at 1279. Furthermore, in

determining whether a judicial confession was made, courts have taken into account

a party’s otherwise consistent opposition to the fact alleged to have been confessed.

La Louisiane Bakery Co. Ltd. v. Lafayette Ins. Co., 09-825 (La. App. 5 Cir.

02/08/11), 61 So.3d 17, 27; Opti-Flow, LLC v. Production Services Intern., Ltd., 04-

1357 (La. App. 3 Cir. 06/01/05), 903 So.2d 1171, 1174, writ denied, 05-1748 (La.

22-CA-141 3

01/13/06), 920 So.2d 240; Jefferson Parish Clerk of Court Health Ins. Trust Fund

Through Mouledoux, supra. Thus, the presence of consistent opposition to the

allegedly confessed fact weighs against finding a confession. La Louisiane Bakery

Co. Ltd., 61-So.3d at 27-28; Opti-Flow, LLC, 903 So.2d at 1174.

La. R.S. 9:374 provides that a spouse may be awarded rent to be paid by the

spouse exercising exclusive use and occupancy of a residence. The burden of proof

is on the party claiming reimbursement. Vinet v. Vinet, 20-387 (La. App. 5 Cir.

04/14/21), 347 So.3d 972, 978.

Although Mr. Thomas stipulated to a value for Ms. Toups’ rental

reimbursement claim in the joint sworn detailed descriptive list, a review of the

record shows that Mr. Thomas consistently opposed Ms. Toups’ rental

reimbursement claim in the hearing officer conference. This fact is undisputed based

on the hearing officer’s recommendation. If Ms. Toups’ rental reimbursement claim

was not contested or no longer at issue (i.e., by stipulation or judicial confession in

joint sworn detailed descriptive list), then the parties would have entered into an

express stipulation/consent judgment with the hearing officer regarding Ms. Toups’

entitlement to and the value of her rental reimbursement claim. The parties clearly

did not enter into an express stipulation or consent judgment regarding this issue,

and Mr. Thomas filed a timely objection to this recommendation by the hearing

officer.

Mr. Sandoz’s appraisal report is not in the record, nor was it admitted into

evidence at the objection hearing. Therefore, it is unclear if the value stated in Mr.

Sandoz’s report for the fair market rental value is the same as agreed to by the parties

in the joint sworn detailed descriptive list or if the value is different. Additionally,

because the hearing officer’s recommendation specifically states that the parties

provided documents, which were reviewed, discussed, and some of the values were

22-CA-141 4

updated, it is also unclear what documents the hearing officer relied on (or not) in

modifying the amount of rental reimbursement due to Ms. Toups in her

recommendation.

Furthermore, the record shows that Mr. Thomas consistently opposed Ms.

Toups’ request for rental reimbursement and this alleged confessed fact in his (1)

objection and memorandum in support of his objection; (2) his testimony at the

objection hearing and his counsel’s arguments against Ms. Toups’ rental

reimbursement claim;8 and (3) his appeal and brief with this court.

Moreover, the record reveals that since the filing of the joint sworn detailed

descriptive, at no time did Ms. Toups express a belief that her rental reimbursement

claim was no longer at issue, nor did she rely on the joint sworn detailed descriptive

list, to her detriment. At the objection hearing, Ms. Toups’ did not submit any

evidence regarding her rental reimbursement claim.9 Also, following the objection

hearing, in her post-trial memorandum to the trial court, Ms. Toups’ counsel only

argued, without any evidence, that “the appraisal was contemplated and discussed”

during the hearing officer conferences, it was “submitted” to the hearing officer for

her consideration, and her decision was based upon that information. Ms. Toups’

counsel additionally stated that the rental reimbursement amount recommended by

the hearing officer is “reasonable and less than Ms. Toups was requesting based

upon the appraisal.” [Emphasis added.] Ms. Toups’ post-trial memorandum shows

that Ms. Toups did not believe that the alleged confessed fact (i.e., alleged value of

8 Additionally, on cross-examination, when Ms. Toups’ counsel specifically questioned Mr.
Thomas as whether he was “denying that she should get rental reimbursement for [him] living in
the house,” Mr. Thomas replied, “I’m denying she should get rental reimbursement.”
9 When Mr. Thomas’ counsel argued that Ms. Toups’ did not submit any evidence regarding the

value of her alleged rental reimbursement claim, Ms. Toups’ counsel only argued that he thought
that Mr. Sandoz’s appraisal report was submitted and was in the record. Ms. Toups’ counsel did
not move or offer to admit Mr. Sandoz’s appraisal report into evidence at that time.

22-CA-141 5

$30,000 as stated in the joint sworn detailed descriptive list) was not at issue and she

did not rely on it, to her detriment.

Ms. Toups’ counsel argued, for the first time on appeal, that the trial court

erred in failing to consider the judicial confession in the joint sworn detailed

descriptive list that provided for rental reimbursement to Ms. Toups in the amount of

$30,000. Ms. Toups’ counsel argued that this judicial confession had the effect of

waiving evidence as to her rental reimbursement claim and withdrawing the subject

matter of the confession from issue. Thus, Ms. Toups’ counsel argued that no

evidence was necessary to establish Ms. Toups’ right to rental reimbursement.

Upon review of the record, there is no evidence that Ms. Toups relied on the

alleged judicial confession to her detriment or believed that her request for rental

reimbursement was no longer an issue. Moreover, despite the filing of the parties’

joint sworn detailed descriptive list, Mr. Thomas consistently opposed Ms. Toups’

claim for rental reimbursement, including the value of said claim. Based on the

particular facts in this case, the presence of consistent opposition by Mr. Thomas to

the allegedly confessed fact and an absence of Ms. Toups reliance on the allegedly

confessed fact or a belief that the claim was not at issue weighs against the finding

of a judicial confession.

In this case, Mr. Thomas filed a timely objection. As required by Louisiana

District Court Rule 35.7 and La. 46:236.5, the trial court conducted a contradictory

evidentiary hearing wherein the parties were provided an opportunity to present

evidence, sworn testimony, and argument regarding their claims. The hearing was

conducted de novo. See Fairbanks v. Beninate, 20-206 (La. App. 5 Cir. 12/23/20),

308 So.3d 1222, 1233-1234, writ denied, 21-250 (La. 03/23/21), 313 So.3d 272;

Dugué v. Dugué, 17-525 (La. App. 5 Cir. 06/27/18), 250 So.3d 1174, 1178. At the

trial court hearing, the burden of proof did not shift to the objecting party. Fairbanks,

22-CA-141 6

308 So.3d at 1234. The burden of proof remained on the moving spouse (Ms. Toups

in this case), who originally had the burden of proof. Id.

Louisiana District Court Rule 35.7 provides that the trial court “shall not be

bound by the recommendation of the officer.” The trial court “may review the

hearing officer’s conference report, and shall accept, reject, or modify in whole or

in part the findings of the hearing officer and give them such weight as deemed

appropriated based on the evidence adduced at the hearing.” Id. Additionally, La.

R.S. 46:236.5 provides that the trial court “shall accept, reject, or modify in whole

or in part the findings of the hearing officer” after de novo consideration of the

evidence. La. R.S. 46:236.5; Fairbanks, 308 So.3d at 1234. Here, the trial court

clearly rejected the hearing officer’s recommendation awarding Ms. Toups’ rental

reimbursement after a de novo hearing in which Ms. Toups failed to submit any

evidence in support of her claim.

Consequently, based on the evidence, I cannot conclude that the trial court

was manifestly erroneous in denying Ms. Toups’ request for rental reimbursement.

Accordingly, I would affirm the trial court’s denial of Ms. Toups’ request for rental

reimbursement.

22-CA-141 7

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 28, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-141
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE)
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